Engineer Warned to ‘Change His Attitude’

onOctober 31, 2017

You can argue with the chairman of the Rochester Planning Board over how to interpret a Zoning Bylaw, but when the chairman tells you, “We wrote the God-damned thing,” chances are you will not win said argument.

An informal meeting between representatives of JC Engineering, Inc. and the Planning Board over a proposed Form B Preliminary Site Plan for a 24-lot subdivision on Rounseville Road (the field next to Plumb Corner) quickly became heated once the board told engineer Brian Wallace that he was misinterpreting the Limited Commercial District Zoning Bylaw.

Wallace said what he wanted to discuss that night was building an access road to the back of the existing lot. But Chairman Arnie Johnson was quick to point out that the dimensions Wallace had for 24 residential lots were for mixed-use Limited Commercial District Lots, not for Agricultural/Residential lots.

“The dimensions of Limited Commercial won’t work for this project,” said Johnson, adding that town counsel agreed with that determination. “This is not Agricultural/Residential. Residential use is permitted … but two-acre lots are required for a residential lot.”

Wallace said that it was his firm’s understanding that if the project was within the Limited Commercial district, then the lots in the preliminary plan would conform.

Town Counsel Blair Bailey jumped in, saying that the intent of the Limited Commercial district and its smaller lot requirements was to accommodate more mixed-use – commercial with residential apartments above – and a more village setting for commerce and residences. He paraphrased the bylaw, saying that residential-only lots would still have to conform to residential lot requirements outside the Limited Commercial district – a two-acre minimum to build.

And under a residential-only circumstance, Johnson added, there would only be enough room on that land for eight houses – not 24.

Wallace’s colleague George Churchill begged to differ, saying the bylaw was clear and the lot sizes were acceptable within the Limited Commercial district for 24 homes.

He said he didn’t know if the location would house assisted living, just homes, or what, but that it wasn’t required to state the intended use for just a pre-filing informal discussion.

Bailey told Churchill, “I’m on salary if you want to fight this out a couple years in court.”

Johnson added, “And it’s the seven of us. We’re the ones that vote.”

“Before you waste a lot of your client’s money, would you like to have a roll call vote to see what this board thinks of a twenty-four lot [subdivision at that location]?” said Johnson.

Bailey said that he and the board were just “being up front” with them, cautioning Churchill not to spend his client’s money knowing that the board would not allow the proposed 24-lot subdivision. If the intent is to put houses on those lots, Bailey said, “It’s not going to happen.”

If there are no stores slated for the site, Bailey said, then the lot requirements for houses return to a two-acre lot requirement to build.

If the engineers wanted to “play hardball,” as Planning Board member Ben Bailey put it, then the board suggested perhaps adding a notation on the approval stating that the 24 lots would be “non-buildable,” requiring a return before the board before anything could be built.

Churchill said the new owner of the land likely couldn’t even sell any lot unless a road could be built and basic infrastructure put in place. He continued to argue over the language of the bylaw, prompting Johnson to read the bylaw in its entirety.

“You can’t pick and choose the cake from all of our zoning bylaws,” said Johnson. “The most house lots you can build is eight.”

Town Counsel Bailey told Churchill, “I’m free the next couple years in Superior Court … It’s pointless to have this discussion. I’ve given them my opinion.… If you want to try and put houses there, then it’s gonna involve a fight.”

Johnson suggested Churchill present a plan to build an access road, leaving out the proposed lot lines. Ben Bailey added, “If you push this concept of dividing it up into twenty-four lots … you’re gonna wind up with a lot of resistance.”

Combine the three existing lots, the board advised Churchill. Then come back for a roadway permit. Board member Chris Silveira added, “You can draw the lot lines [after] as your customers come.”

Board member Gary Florindo suggested that Churchill change his attitude if he wanted to work productively with the board.

“It’s tough to deal with someone who’s not reading their own regulations,” Churchill shot back.

Johnson wasn’t having it.

Don’t tell me how to read that bylaw, said Johnson. “We wrote the God-damned things…” And the Attorney General backed it up, along with town counsel, added Johnson.

The person who purchased the land said he would be willing to work with the board, and hopefully come up with a plan to proceed and set a hearing date in the near future.